Jillian van Turnhout (Independent) | Oireachtas source

I said yesterday I wanted to make a few points on this provision. I have stated on several occasions that I hoped the wording of the amendment would include the word "proportionate" and it is significant that the Minister has included it. This will perhaps address some of the concerns Senator Mullen has raised.

I also very much welcome the removal of the specification of failure "for physical or moral reasons" and the insertion in its place of the phrase "to such extent that the safety or welfare of any of their children is likely to be prejudicially affected". I believe this reframes how we view child protection. Instead of looking to why parents fail, we will instead be looking at the impact on the child. All too often, I have heard of cases which start with somebody, perhaps a teacher or health professional, reporting a concern about a child. The social worker will arrive at the family's home to investigate the concern and, given the current constitutional framework, instead of first looking at the child, the family and the surrounding environment, the social worker will have to ascertain the marital status of the parents because the threshold for intervening in a married family differs so substantially from that for intervening in a non-marital family.

We have the focus all wrong in the current situation, in which it seems intervention is more about building a case against the family. Obviously, in exceptional cases in which a child is in danger, an immediate intervention should take place to protect the child. However, in the majority of cases - this echoes much of what has been said today - there is an ongoing concern for the welfare of the child, and in these cases we should be empowering both the State and the family to work together to remedy the situation. We should be working to keep families together and if, after a defined period, remedy cannot be found, then the emphasis should move to the best interests of the child.

I would like to note the proportionality test as set out in law in Heaney v. Ireland, which is as follows:

The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:?(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible; and
(c) be such that their effects on rights are proportional to the objective.

This is very important for us to note.

This provision also holds that the State will "supply the place of the parents". There has been some confusion and concern about what this means. To "supply", in the context of State intervention, will not mean in all cases that the State will replace or take over from parents.

The term "supply" also means to make available for use, to provide, to furnish, to equip, to make up for a deficiency, to compensate for or to serve temporarily as a substitute. In the majority of cases it means that the State will support the role of parents and families. Supplying can be in part; it does not have to be mean "replace". This provision shifts the trigger of intervention from a consideration of the reasons for failure of the parents to a consideration of the impact of the failure on the child. As my colleague Senator Mullen is aware, I looked at the wording closely and considered tabling amendments. I cannot support the amendment because we cannot just look at the interplay within the sentence; we must look at the provision. The term "proportionality" is extremely important. I have a difficulty in that the threshold will be raised if we put in ?and significantly?. Having taken advice overnight, I have concluded that the interplay between "prejudicially" and "significant" would increase the threshold to where it currently is. What we are trying to do is to make a level threshold for all children and all families so that we have the same threshold for intervention. In this way we can, I hope, support families. In exceptional cases the State would intervene to remove a child, but they are exceptional cases, and that is where we need to keep everything in balance.